David Randolph Smith

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Lex et Scientia
[Law & Knowledge]
A Collection of Legal News and Commentary

Barack Obama: The Law Student
Posted: December 17, 2008

“I went to Harvard Law School spending most of three years in poorly lit libraries, poring through cases and statutes,” Obama wrote in his memoir, “Dreams from My Father.” Over the last two years, he hasn’t dwelled publicly on his HLS days—not surprising during a campaign where the label “elitist” proved a potent political epithet. But his time at HLS had an important impact on Obama, says David Mendell, who wrote the 2007 biography “Obama: From Promise to Power.” “I don’t think you can discount how much that period helped educate him and played a big role in his development,” says Mendell, a former Chicago Tribune reporter. It was as a law student that Obama first made history—and national headlines—when he was elected the first black president of the Harvard Law Review in the spring of 1990." Read more.

The Brutal Side of Fraternity Hazing
Posted: December 15, 2008

In 1994 I represented a college student at Tennessee State University who had been brutally hazed as part of his initiation to a Black fraternity. His name was Wardell Pride. He was a courageous young man who broke the code of silence and exposed the very sinister and sadistic side of college hazing. His story and the case was covered by the New York Times. "Lawsuit Shatters Code of Silence Over Hazing at Black Fraternities" (New York Times, December 21, 1994). His case was settled and he has gone on to lead a happy and successful life, including playing professional tennis.

Quite a different road and result for Brian Nichols. You may have read last week that Brian Nichols, the man who went on a shooting spree at a courthouse in Georgia was sentenced to prison last week (a life sentence without parole). Nichols shot and killed the Superior Court judge in his case, Rowland Barnes, and court reporter Julie Brandau, in Barnes’ courtroom. He shot and killed Fulton County sheriff’s deputy Hoyt Teasley on the street outside the courthouse, and U.S. Customs agent David Wilhelm later that night in Buckhead. In his defense his attorneys cited to his terrible childhood and to something that caught my attention and was all too familiar. Nichols had been the victim of a brutal hazing episode at a Black fraternity in college in 1990: "The witness said Nichols was subjected to brutal beatings during hazings when he was a fraternity pledge in the early 1990s at Newberry College in South Carolina. :

  • "Terrence Tyson, a member of the fraternity, said Nichols complained to him about the brutality of the paddlings, which went on for weeks. “It wasn’t normal hazing,” Tyson said. “It was abnormal. It was too rough.” He testified that Nichols complained about bruises and, at one time, went to the school nurse go get ointment to treat his wounds. He said Nichols said to him: ” ‘Man ya’ll are beating me like slaves,’ which we were. It was real violent.” Nichols eventually videotaped the hazings and gave the tape to school authorities. He was blackballed and not made a member of the fraternity, after he’d been led to believe he was being accepted. “They [fraternity brothers] just beat him and threw him out to the curb,” Tyson said."

For more details on the legal ramifications of hazing: Read here.

Law Offices of David Randolph Smith & Edmund J. Schmidt Announce Charitable Donation Program
Posted: December 10, 2008



A donation to Action Against Hunger is made by the firm from any attorneys' fees obtained by settlement or judgment. Action Against Hunger / Action Contre la Faim (ACF) is a global humanitarian organization committed to eliminating world hunger. Through integrated programs in nutrition, water and sanitation, and food security, ACF works to save the lives of malnourished children while ensuring families have access to safe water and sustainable solutions to hunger. Read more. Please donate here

Yes We Did!
Posted: November 4, 2008

  • "He seems slender and slight and young, astonishingly young, and you notice first of all, for it is impossible not to, the physical grace; he moves like an athlete much more than a politician, taking pleasure in his body: bursting up onto the stage, the lanky highly stylized movement, shoulders bent slightly concave, gathering everything into those constantly clapping hands, using the hands in their clapping to acknowledge the crowd, his head nodding all the while, as if he is drawing his energy only from them and showing that energy with his clapping and nodding, with the bursting energy of his body that is an embodiment of theirs, an embodied picture of what they're giving him. He prances with evident pleasure around the little stage, moving his head in big theatrical nods, embracing each politician in turn, big full-bodied embraces, and again one thinks of an athlete on the sidelines or in the dugout: all of it is done with the unhindered pleasure of the body, all of it says confidence and pleasure, as if this, being bathed in the huge cheers, taking sustenance and energy from the wave of sounds and the shouts of his name, is the place where he breathes his true oxygen, where he really lives. He seems made to be precisely here—in the midst of these thousands of sun-drenched cheering people. On this perfect mid-October day, there is only him and them and what is between them. "How's it goin', Northwest?" That salutation, and the enormous opening roar in response, tells you that he knows these people and they know him. "What a beautiful day the Lord has made!"

Posted: November 4, 2008

In June 1963, the California legislature passed AB 1240, the Rumford Act, a fair housing bill banning discrimination in the sale or rental of housing and to forbid lending institutions, mortgage holders, real estate brokers and others to practice discrimination in housing transactions. The Rumford Act was named after Assembly Member W. Byron Rumford.

In April 1964, a "Realtor's Initiative", Proposition 14, was put on the state ballot.  California has a long-standing, if somewhat peculiar tradition, of ballot propositions that can defeat acts of the legislature. The text of proposition 14 stated that it was an initiative to prohibit the State from denying a person the right to rent or sell property "to any person as he chooses." In effect, the initiative would have been a repeal of the 1963 Rumford Act. It would have permitted whites to not sell their homes to African-Americans or any person of color (or of any relgion).

Proposition 14, or the California Fair Housing initiative, became a focal point for the issue of racial discrimination and the civil rights movement in California. The Rumford Act preceded the 1964 and 1968  Federal Civil Rights Acts. 

My mother, Marilyn Smith and father, David Edward Smith were both graduates of Middlebury College (1950) and were  teachers in the San Mateo County public school district. They were active in opposing Proposition 14.

I was eleven years and attended school at Saint James Boys’ School in the Mission District in San Francisco. With my parents and others I went door to door and urged people to vote “No on 14” – to prevent overturning one of the earliest and most important Civil Rights measures ever enacted.

What I vividly remember --to this day -- was the face of racial hatred. Here I was a white Catholic 5th grader asking the person opening the door to vote against discrimination and "No on 14." There were sneers, name-calling and seething anger. All too many white people simply refused to accept that they could not discriminate against minorities (especially blacks) in housing and real estate.

Proposition 14 passed in 1964 election but was declared unconstitutional by the the California Supreme Court, whose ruling was affirmed by the U.S. Supreme Court in Reitman v. Mulkey, 387 U.S. 369 (1967). This United States Supreme Court decision set an important legal precedent that states could remove a constitutional amendment passed by initiative, if the proffered amendment "encouraged" racial discrimination. In 1968 Congress outlawed discrimination in housing at the federal level.

Today, hopefully, we will elect a black man president of the United States.  In doing so we move towards the day when racial hatred will be absolutely unacceptable and intolerable in America. Hope. Change. Obama.

Tennessee Court of Appeals Declares Three-Year Statue of Respose in Medical Malpractice Cases Unconstitutional as to Minors Injured Before Calaway
Posted: October 30, 2008

In a case argued by David Randolph Smith to the Court of Appeals on September 8, 2008, on October 29, 2008, in a 2-1 decision the Tennessee Court of Appeals ruled in Crespo v. McCullough that Tennessee's three-year statute of repose in medical malpractice cases could not be constitutionally applied to minors injured before December 9, 2005. The Court ruled in favor of the minor-plainitff Laura Crespo and held that the constitutional guarantees of due process and equal protection of laws were violated by applying the three-year statute of repose to minors who were injured prior to the Supreme Court's decision in Calaway v. Schucker, (12/09/05). In Calaway the Tennessee Supreme Court held (3-2) that the three year statute of repose in the medical malpractice statute trumped the legal disability statute for minors and, contrary to prior law, minors did not have until age 19 to sue for medical malpractice. The Supreme Court decision in Calaway, however, did not consider or address any contitutional issue or challenge. The Court of Appeals accepted the argument advanced by the Crespos that the constitutionality vel non of the three-year statute of repose as applied to minors injured before the date of the Calaway decision was an issue of first impression.

  • The majority opinion by Judges Susano and Franks:
  • The dissenting opinion by Judge Swiney:

U.S. Supreme Court to Hear Oral Argument in "Business Case of the Century
Posted: October 30, 2008

On November 3rd the Supreme Court will hear the case of Wyeth v. Levine, which has been called the “business case of the century”—and with good reason. In essence, Monday’s ruling will decide if patients have the right to sue pharmaceutical companies for personal injuries stemming from prescription drugs approved by the Food and Drug Administration (FDA). The Court has agreed to decide whether a musician who lost her arm after receiving an anti-nausea drug via an off-label injection method may recover under Vermont tort law despite FDA approval of the drug's label.

The case, Wyeth v. Levine, No. 06-1249, arose when Diana Levine went to the hospital suffering from nausea associated with a migraine headache. Physicians initially gave her Phenergan, a drug manufactured by Wyeth, by injecting it into her muscles. When her nausea persisted, they gave her the drug using the so-called "IV push" method, involving injection of the drug into her vein. They bypassed administration via an IV drip. The drug made contact with her arteries, leading to gangrene and forcing doctors to amputate her arm.

The Phenergan label had been approved by the FDA in 1955, and re-evaluated and approved in the late 1980s. Wyeth knew that if the drug reached the arteries it could cause gangrene. Its approved label cautioned that if the drug were administered by and IV drip, care should be taken to avoid arterial exposure and noted the risk. The label did not mention the IV push method of injection, and evidence suggested that the FDA did not evaluate whether the label should address the risk associated with the IV push method.

After settling with her health care providers, Levine went to trial against Wyeth. A Vermont jury awarded her $6.7 million, concluding that Wyeth had failed to warn of the risks associated with IV push administration of Phenergan.

On appeal, the Vermont Supreme Court ruled that the state tort claim was not preempted by the FDA approval of the Phenergan label. The state high court reasoned that it would have been possible for Wyeth to provide the FDA-approved label and additional warnings cautioning against IV push administration. It further found that requiring Wyeth to do so would not obstruct any goals of the federal Food, Drug and Cosmetic Act.

Seeking certiorari, Wyeth argued that state court are often asked to hold drug manufacturers to different standards than those set by the FDA, creating a situation of national urgency. Moreover, the drug company contended, the FDA's labeling requirement did not merely set a minimum standard for release of drug information, but took into account all the risks and benefits associated with Phenergan and opted for a label that reflected the best level of information to achieve optimal use of the drug. Finally, the company argued, compliance with the Vermont tort standard would frustrate the FDA's goal of optimal Phenergan use by basically prohibiting its administration via IV push.

Resisting review, Levine compared the case to Sprietsma v. Mercury Marine, 537 U.S. 51 (2002), where the Court held that an Illinois tort recovery for boat injuries that could have been avoided with a propeller guard were not preempted where a federal agency had considered requiring guards but eventually dropped the issue. Here, Levine argued, Vermont should not be prevented from applying its tort law where the FDA never considered whether to include a prohibition on the IV push method on its label.

Potemkin Prevarications:
Posted: September 9, 2008

From Wikipedia: Potemkin villages were fake settlements erected at the direction of Russian minister Grigori Aleksandrovich Potemkin to fool Empress Catherine II during her visit to Crimea in 1787. Potemkin, who led the Crimean military campaign, had hollow facades of villages constructed along the desolate banks of the Dnieper River in order to impress the monarch and her travel party with the value of her new conquests, thus enhancing his standing in the empress's eyes.

Sarah Palin, from the village of Wasilla, Alaska has taken the center stage of American politics. To impress her new audience of admirers, like Potemkin, she has paraded out walls of falsehoods and half-truths. She earnestly peddles a grand façade of lies and half-truths (and then leaves the stage to the cheers of the Potemkin/Palin villagers at McCain-Palin rallies and takes no questions). Here are some examples of Palin's prevarications delivered from her teleprompter at the St.Paul convention and in "McCain Country":

  • I told the Congress "thanks, but no thanks," for that Bridge to Nowhere. A lie. She supported it as a candidate and as governor and moved away from support only after Congress killed the project. She kept and spent the money to boot.
  • That luxury jet was over the top. I put it on eBay. A lie/materially misleding. There were no bids, it was taken off ebay and sold through a broker at a loss to the state. Moreover selling on eBay was not her idea, it was standard pratcice in Alaska before this jet was put on eBay.
  • Against pork barrel entitlements: A lie. Alaska, during her tenure as governor was singulalrly successful in asking for and getting massive federal pork spending.
  • Obama’s “Present” Votes Somehow Gutless or Stupid: A lie. Voting "present" was a respected and well-recognized parliamentary procedure in Ilinois that Obama used adriotly.
  • Community Organizers Don’t Have Responsibility: A lie. Obviously.
  • That Obama “talked bitterly” on a radio interview in San Francisco that people in small towns cling to guns and religion: A lie. Obama said said economic problems had led voters in some small towns to become "bitter" and "cling to guns or religion." Palin left out the ecomomic problems point and faslely charged Obama "talked bitterly."
  • That she took on the old politics as usual in Juneau and stood up to the special interests, the lobbyists, big oil companies, and the good-ol' boys network. A lie.
  • I also drive myself to work. A lie/half-truth. If Juneau (the capitol) was her home base, she charged taxpayers to get to work in Juneau and charged taxpayers for the drive from Wasilla to Juneau.
  • And I thought we could muddle through without the governor's personal chef. A lie. The chef was reassigned when she moved to Wasilla and she charged the state for her meals at home.
  • And when that deal was struck, we began a nearly forty billion dollar natural gas pipeline to help lead America to energy independence. That pipeline, when the last section is laid and its valves are opened, will lead America one step farther away from dependence on dangerous foreign powers that do not have our interests at heart. A lie. Although Governor Palin approved the building of the pipelline by granting a license to TransCanada Corp., the necessary permits have not (and may never be obtained). Palin implies that construction has begun on a major natural gas pipeline from the top of Alaska into Canada. That is not correct.In fact, no building has begun and actual construction is years away, if it ever happens. This summer the Alaska Legislature, at Palin's request, passed a bill under which the state will issue a "license" to a Canadian energy company, TransCanada Corp., and pay it up to $500 million as an incentive to someday build this enormous project, which Alaska politicians have long sought with little success. The license is not a construction contract, and federal energy regulators have not yet approved the project. Palin also puts the price tag for the project at $40 billion, an exaggeration. This is roughly $10 billion more than most cost estimates industry players and consultants have made to date.
  • Terrorist states are seeking nuclear weapons without delay ... he wants to meet them without precondition. A lie/half-truth.Obama said the military option is "on the table" for dealing with Iran's nuclear program, and in contrast to earlier statements, he said he would meet with Iranian leaders "if and only if it can advance the interest of the United States."He made it clear that we should not expect a President Obama to be sitting down with Iranian President Mahmoud Ahmadinejad any time soon: "[A]s president of the United States, I would be willing to lead tough and principled diplomacy with the appropriate Iranian leaders at a time and place of my choosing if and only if it can advance the interest of the United States. That is my position. I want to be absolutely clear."
  • Victory in Iraq is finally in sight ... he wants to forfeit. A lie again. McCain-Palin and have not clearly defined "victory" and Senator Obama's plan for a phased redeployment and transfer of military responsibility is hardly a forfeit. In fact the Iraqi prime minister backed Obama's timetable plan!
  • Al Qaeda terrorists still plot to inflict catastrophic harm on America ... he's worried that someone won't read them their rights? A lie. Most persons of average intelligence know that the Miranda case requires telling a suspect that they have rights (rights to remain silent, right to counsel, etc.). Obama has never suggested that terrorists or enemy combatants should enjoy Miranda (read them their rights) protection. What Obama has been in favor of (as the U.S. Supreme Court ruled in Boumediene v. Bush) is the fundamental human/legal right of the writ of habeas corpus for persons charged by military tribunals. Sarah Palin's (Bush's speechwriter's) mockery of this constitutional protection would return the U.S. to the Star Chamber and Spanish Inquisition (which perhaps she really is in favor of). This is a village idiot argument made by extremists who are truly ignorant of what the writ of habeas corpus means.

Sarah Palin, with her effective "let me tell you something" delivery of a "hockey-mom" is simply reading what George Bush's speechwriter puts on the teleprompter. Bush, Palin and McCain have corrupted (or perhaps adopted as their mantra) Churchill's famous line: "In wartime, truth is so precious that she should always be attended by a bodyguard of lies."

Sarah Palin's Criminal Record
Posted: August 29, 2008

  • A Westlaw criminal records search shows that in 1993 Sarah Palin pleaded no contest to criminal failure to register for commercial salmon fishing. She was also charged with commercial fishing without proper identification.
  • The permit to fish in Bristol Bay (where sockeye salmon gather en masse for a brief period of 10 days) costs tens of thousands of dollars. By fishing without a commercial license/permit Sarah Palin cheated and pleaded no contest to criminal negligence. So she crossed the ethical/criminal line well before "Troopergate" (where she is under investigation for misusing her position as Alaska's governor to get her brother in law fired as a state trooper to help her sister's custody battle in state-court).
  • The permit law, price aside, is designed to protect the salmon population and equalize the setting as between drift and shoreline commericial sockeye salmon fishing:
  • 5 AAC 06.370. Registration and reregistration. (a) Before taking salmon in Bristol Bay, each commercial salmon set gillnet or drift gillnet CFEC permit holder shall register for a district described in 5 AAC 06.200. Each drift gillnet permit holder also shall register for the same district the drift gillnet vessel that the permit holder will be operating. Initial district registration is accomplished by completing a registration form provided by the department and returning the completed form to the department office in Dillingham or King Salmon. For the purposes of this section, a CFEC permit holder and a drift gillnet vessel may be registered in only one district at a time.
  • The Alaska Supreme Court upheld the law in Meier v. State, Bd. of Fisheries 739 P.2d 172 Alaska,1987. A commercial salmon fisherman must register in a district before he may fish there. 5 AAC 06.370(a). The Board of Fisheries promulgated 5 AAC 06.370 in 1986. Commercial salmon fishermen may operate either set gillnet gear or drift gillnet gear in Bristol Bay. 5 AAC 06.330. Setnet fishermen work fro